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92 Cards in this Set

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What 3 elements of damages are awarded in personal injury actions?
Nominal
Compensatory
Punitive
What is meant by remittitur?
A ruling by a judge (usually upon motion to reduce or throw out a jury verdict) LOWERING the amount of damages granted by a jury in a civil case.
What is a per diem argument?
Per diem arguments are used to articulate pain & suffering damages and to give some tangible basis for a pain and suffering award.
What is the collateral source rule?
The collateral source rule is an evidentiary rule that bars defendant's from introducing evidence to show that a plaintiff has received collateral source benefits.
Who pays the expenses of litigation?
Plaintiffs and Defendants pay for their own litigation costs.
What is a collateral source?
Collateral sources are payments received by the plaintiff in a personal injury case for compensation or benefits from a party not involved with the case to compensate for the damages the plaintiff suffered.
How is the value of property usually measured?
Property is measured by MARKET VALUE if completely destroyed

If not completely destroyed, then property is measured by converted difference in value before & after the injury.
How is the value determined for property that fluctuates in value?


(such as crops)
HIGHEST REPLACEMENT VALUE

Plaintiff may recover the highest market value between the time of conversion and a reasonable period within which he could have replaced the goods by purchase on the market.

(Judge determines how long is reasonable)

(Time for replacement begins at the time the Plaintiff LEARNS of it)
Name the 3 factors in determining whether a punitive damages award is excessive and in violation of the constitution. (R..D..D)
(1) Degree of REPREHENSIBILITY of the defendants conduct

(2) The DISPARITY between the actual or potential arm suffered by the plaintiff and the punitive damages award

(3) The DIFFERENCE between the punitive damages award by the jury and the civil penalties imposed in similiar cases.
If a punitive damage award is excessive, what provision of the constitution does it violate?
It violates the DUE PROCESS clause found in the 5th and 14th amendments.

no person shall be deprived of "life, liberty, or property, without due process of law."
Are actual damages necessary to receive punitive damages?
No.....you can receive punitive damages without suffering actual damages.
What questions must the jury answer when determining whether punitive damages should be awarded?
(1) Do the facts WARRANT punitive damages?

(2) How much is APPROPRIATE?
When can a plaintiff be awarded punitive damages in a product liability claim?
To be awarded punitive damages in a product liability claim the plaintiff must show:

The injury plus defendant's conduct exemplified MALICE AND SPITE.
Can the estate of a Plaintiff be awarded punitive damages?
NO.....an estate can't receive punitive damages.
What are the four rules of avoidable consequences?
(1) Defendant is entitled to a credit for damages plaintiff avoided or minimized

(2) Defendant is entitled to a credit for damages plaintiff COULD HAVE avoided or minimized

(3) Plaintiff is entitled to recover reasonable costs of minimizing damages (whether he actually did or didn't)

(4) When plaintiff's recovery is reduced for failure to mitigate its the net amount the defendant WOULD HAVE benefited after credit to plaintiff for hypothetical cost of that avoidance.
What is a wrongful death cause of action?
Wrongful death is a cause of action brought by certain beneficiaries named in the statute.

(Begins at time of death)
Name three most common ways in which pecuniary loss is measured.
(1) Loss to dependents measure (support & amenities)

(2) Loss to estate measure (deceased persons expected lifetime earnings MINUS his $$ spent on self maintenance)

(3) Combination of Both
What is a survival action?
Survival action is a cause of action brought by the deceased persons estate.

(Time of injury until time of death)
What are the two traditional justifications for charitable immunity?
Implied Waiver---those who accept the charity, can't sue.

Trust Fund---funds held for charity only! Can't be used to pay judgments
What is meant by the Public Duty Doctrine?
"A duty to all is a duty to none"

Riss Case---The stalker who threw lye in the woman's face.
What is the effect of the tolling of a statute of limitations?
If the plaintiff is under a disability at the ACRUAL of a claim (once all elements are present) the statue temporarily stops until the disability is removed. (this WILL be on the test)

EXAMPLE:

(1) a minor

(2) an insane person
Name two circumstances where a public entity has a duty to take reasonable affirmative steps to protect the plaintiff or her property?
(1) a 911 call would create a special relationship in which the police would have a special duty to protect the caller because the caller is now RELYING on the police to come.

(2) A school crossing card has the same duty because the school has hired him to protect a certain group of individuals. The SPECIFIC children coming and going to school.
Whats the rule for failure to warn cases and knowability?
Knowability is a required element of strict liability for failure to warn cases.
What is ALWAYS a defense in a strict liability case?
Assumption of Risk is ALWAYS a defense in strict liability cases
Name two "things" that always fall under absolute liability.
(1) Ultrahazardous activities

(2) Wild animals
Is a showing of negligence required in a strict products liability claim?
showing of negligence is not required in a strict products liability claim.
When is a manufacturer liable for injuries resulting from abnormal or unintended use of his product?
A manufacturer is liable for injuries resulting from abnormal or unintended use of his product if such use was REASONABLE FORESEEABLE.
Are hospitals liable under strict PRODUCTS liability?
NO, hospitals are not liable under strict products liabilty.
In analyzing a Strict Products Liability Claim what must the Plaintiff prove?
(1) The defendant was in the business of selling products

(2) The defendant sold or otherwise supplied the product in question

(3) The product was expected to and did reach the plaintiff without substantial change

(4) The product was defective when it left the defendant's hands

(5) The product's defect was the cause in fact and legal cause of the plaintiff's physical harm
In establishing a defective product claim the plaintiff will look at what 3 possible theories?
(1) Manufacturing

(2) Design

(3) Warning/Instructions
What is the test for a manufacturing defect?
402A & 3rd Restatement are in accord here.

The test is whether the defect was a deviation from the norm.
What is the test for a design defect?
Under 402A---
(1) Consumer Expectation
(2) Risk utility balancing-Wade factors
(3) Combination of both

Under 3rd Restatement---
(1) Foreseeable risks of design v. reasonable alternative design
What is the test for a failure to warn defect?
Foreseeable risks could have been reduced or eliminated by reasonable warnings/intructions.
Name the 5 DEFENSES to a strict products liability claim.
(1) Unforeseeable Misuse
(2) Comparative Fault
(3) Assumption of Risk
(4) Preemption (fed or state statute)
(5) Government Contractor Defense
What is the test for a defective FOOD product?

2nd and 3rd Restatement
2nd Restatement--
(1) Consumer expectations
(2) Foreign/natural test

3rd Restatement--
(1) Consumer expectations
What does a products liability DEFENDANT have to establish in order to invoke the government contractor defense?
LOOK THIS UP AND PUT THE ANSWER HERE!
Who determines if a communication is defamatory?
The Court determines whether the statements in a communication are defamatory.


--This is a question of law--
Who determines if a defamatory statement was understood by its recipients?
The jury determines whether defamatory statements were understood by its recipients.


--This is a question of fact--
When is a communication considered to be defamatory?
A communication is defamatory when:

(1) It harms the reputation of another as to lower him in the estimation of the community

OR

(2) It deters third persons from associating or dealing with him
What is the meaning of the communication in regards to defamation?
The meaning is what the publisher intended

OR

what the recipient reasonably understood it to be (whether correctly or mistakenly)
What is the standard for determining defamation?
The communication would tend to prejudice him in the eyes of a substantial and respectable minority of people.
**When Defamation is clear on its face**

What do you need to prove when pleading Common Law Defamation?


Applies to LIBEL & SLANDER PER SE
The cause of action is made out by pleading and proving:

(1) The Defamatory Words

(2) Of or concerning the Plaintiff

(3) Publication

note: with libel & slander per se, proving special damages is NOT required....it's presumed!!!
What do you need to prove when pleading Common Law Defamation when defamation is NOT clear on its face?
(1) the defamatory words

(2) the publication

(3) the inducement (extrinsic facts)

(4) the colloquium (about the plaintiff)

(5) the innuendo (the particular meaning conveyed by the words)

(6) Special damages (monetary)
When is a publisher of a defamatory matter concerning a group subject to liability to an INDIVIDUAL MEMBER?
liability to an individual member occurs ONLY if:

(1) the group is so small that the matter is reasonable understood to refer to the member

OR

(2) the circumstances of the publication reasonably give rise to the conclusion that there is particular reference to the member.
When is a publisher of a defamatory matter concerning a group subject to liability to a CORPORATION?
If the CORPORATION IS:

(1) FOR PROFIT.....and the matter deters others from dealing with them

OR

(2) NON-PROFIT....and depends on financial support from the public and the matter prejudices it in public estimation
what sort of defamation imputes SLANDER PER SE?

***special damages need NOT BE PROVED IF THIS OCCURS***
A publication is Slander per se if it imputes:

(1) a criminal offense

(2) a loathsome disease

(3) a matter incompatible with his business, trade, profession, or office

(4) serious sexual misconduct (an unchaste woman)
Are proof of Special damages required when you have Slander Per Se?
NO.....it's presumed!

A publisher is liable although no special harm results IF the defamation imputes:

1- a criminal offense
2- a loathsome disease
3- a matter incompatible with his business
4- a serious sexual misconduct
If you are liable for libel or slander are you also liable for emotional distress and bodily harm proved to have been caused by it?
YES
What MUST you plead and prove with clear and convincing evidence that a public official/figure was defamed?
It must be established with clear and convincing evidence that the publisher:

(1) knew the statement was false (falsity)

(2) acted in reckless disregard (Malice)
What are the FOUR distinct causes of action for the INVASION OF RIGHT TO PRIVACY?
(1) Appropriation

(2) False Light

(3) Public disclosure of private facts

(4) Intrusion on ones seclusion or solitude
What does the Appropriation of Name or Likeness mean?
~One who appropriates for his own use or benefit the name or likeness of another

~Reporting of mattes that are newsworthy or of public concern is not an appropriation for which liability is imposed
What does Intrusion Upon Seclusion mean?
One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another OR his private affairs or concerns!!

~~IF THE INTRUSION WOULD HIGHLY OFFEND THE REASONABLE PERSON
Who determines whether the occasion upon which the defendant published the defamatory matter gives rise to a privilege?
The Judge decides if the defendant had a privilege.
Who determines whether the defendant abused a conditional privilege?
The Jury.
A husband or wife is _____________ to publish to the other spouse defamatory matter concerning a third person.
ABSOLUTELY PRIVILEGED
What are the elements of a conditional privilege?
An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that:

(1) there is information that affects a sufficiently important interest of the publisher AND

(2) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.
When does a conditional privilege arise?
When circumstances induce a correct or reasonable belief that there is information that affects a sufficiently important interest of the recipient or a third person
When is there a Qualified Privilege of a publication within a group of people sharing a common Interest?
When circumstances lead any one of several persons having a common interest to correctly or reasonably to believe that there is information that another person sharing their common interest is entitled to know.
When is there a Qualified Privilege of a publication within a family relationship?
The circumstance induces a correct or reasonable belief that:

(1) there is information that affects the well being of a member of the immediate family of the publisher, OR

(2) a member of the immediate family of the recipient or of a third person.
How would a person abuse a privilege?
If the defendant publishes defamatory matter concerning another that is within the privilege, abuses the privilege if he also publishes unprivileged defamatory matter.
The right of privacy is invaded in what four ways?
(1) UNREASONABLE intrusion upon the seclusion of another; OR

(2) appropriation of the others name or likeness, OR

(3) unreasonable publicity given to the others private life, OR

(4) publicity that unreasonable places the other in a false light before the public
When would publication of a defamtory matter be a Qualified Privileges?
(1) public interest

(2) publication in self interest

(3) publication in the interest of a recipient or third person

(4) common interest
What is a COMPLETE DEFENSE to the publication of defamatory matter?
CONSENT
What sort of privilege do JUDICIAL OFFICERS have?
Judicial Officers are ABSOLUTELY PRIVILEGED to publish defamatory matter in the performance of the function IF the publication has some relation to the matter before him.
~witnesses, private prosecutors, legislators
~attorneys are absolutely privileged while engaged in judicial proceedings
who has a QUALIFIED PRIVILEGE to publish defamatory matter?
Inferior State Officers are entitled to make a defamatory communication required or permitted in the performance of his official duties.
Who would be a limited person public figure?
Jan is an outspoken person on abortion rights! Her "abortion" activities makes her a public person for those issues only.

~saying she tortures animals would fall under the private person rule. Her animal cruelty has nothing to do with her abortion activities.
Most privileges are ___________?
Conditional
what's a good way to tell a privilege is conditional?
If it has relatively little social or public significance.
What are the elements of placing a person in False Light?
(1) The false light would be highly offensive to a reasonable person, AND

(2) The defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
In determining whether a duty of care is owed in Negligent Misrepresentation.....what THREE possible tests should you analyze?
(1) near privity (NY Test)

(2) restatement

(3) foreseeability (Wisconsin Test)
Interference torts always involve how many people?
THREE

~he who procures the wrong is a joint wrongdoer
What are the five elements of fraud?
(1) An intentional material misrepresentation of fact or opinion

(2) Scienter

(3) Defendant intended to induce reliance

(4) The misrepresentation cause plaintiffs justifiable reliance

(5) misrepresentation proximately caused pecuniary damages.
Define concealment.
The active concealment of any material fact.
What is the general rule of negligent misrepresentation?
The persons who have no pecuniary interest in the transaction ordinarily have no duty of care and thus liable ONLY for knowingly false misrepresentations.
What is the New York "near privity" test?
liability for negligence is imposed only when the defendant has had some actual contact with the plaintiff.
What is the Restatement rule in determining whether a duty of care is owed for negligent misrepresentation?
The defendant is subject to liability if he intends to supply the information to a small group of which the plaintiff is a member OR if he knows his client will do so.
What is the Foreseeability test for negligent misrepresentation?
The defendant is subject to liability to those who will foreseeability rely on the information
Define Actual Malice.
Actual Malice is the knowledge of falsity and reckless disregard of truth.

~Scientor
What element does defamation require that INTRUSION INTO ONES PRIVACY AND SECLUSION DOES NOT?
PUBLICATION!!

~remember this on the test! Invasion of privacy cause of actions do NOT require publication.
Placing one in a False Light ALWAYS contains what element?
PUBLICATION.
FRAUD must be plead with what?
Specificity!

Each element must be plead!!
What are the elements of fraud/deceit?
(1) A false representation

(2) Scienter

(3) Intention to induce Plaintiffs reliance

(4) Justifiable reliance by plaintiff happened

(5) Damage to plaintiff, resulting from such reliance
How can you tell if a matter is MATERIAL?
A matter is material is it is one to which a reasonable man would attach importance in determining his choice of action OR

If the defendant knows or has reason to know that plaintiff regards or is likely to regard the matter as important in determining his choice of action. (DOESN'T MATTER WHAT A REASONABLE MAN WOULD THINK)
When is one strictly liable for an innocent misrepresentation?
When one makes a misrepresentation of a material fact for the purpose of inducing the other to act in reliance upon it.

~One who is sale, rental or exchange of a transaction!
List four procedural requirements set forth in the Federal Torts Claim Act.
1-

2-

3-

4-
What substantive law applies to tort claims brought against the federal government?
??
How does a court determine whether an executive officer was involved in a discretionary act at the time of the alleged wrong?
??
What is meant by the Feres doctrine and when does Feres immunity apply?
??
What immunity was provided to Federal officers by the Westfall Act? How is it determined whether a federal officer is immune under the act?
??
Can federal and state officers be sued for violations of constitutional rights?
??
What kind of immunity does a state officer have if he is involved in a discretionary act?
??
What is meant by the discovery rule? How does it work?
??